Fisher v. University of Texas comes before the U.S. Supreme Court a second time

November 6, 2015

Foley Hoag LLP and the Asian American Legal Defense and Education Fund (AALDEF) filed an amicus brief in the U.S. Supreme Court on behalf of 21 Asian American education and youth-serving groups and 44 higher education faculty and officials urging the nation’s highest court to uphold the University of Texas at Austin (UT-Austin)’s affirmative action policy.

The 65 groups and individuals signing on to the AALDEF-Foley Hoag brief include the Asian/Asian American Faculty and Staff Association at UT-Austin and the Asian Desi Pacific Islander American Collective at UT-Austin, all opposing Abigail Fisher’s lawsuit challenging the University’s admissions policy. Fisher’s amici have maintained that the University’s use of race as a factor in admissions puts Asian Americans at a disadvantage by favoring Hispanic and African Americans, despite statistical evidence indicating Asian Americans have benefited more from the race-conscious admissions policy than Hispanic applicants.

AALDEF and two other prominent Asian American organizations, Asian Americans Advancing Justice (Advancing Justice) and the National Asian Pacific American Bar Association (NAPABA), represented in their three amicus briefs over 160 organizations working to support equal opportunity and affirmative action within the diverse Asian American and Pacific Islander (AAPI) communities, which include Arab, Filipino, Japanese, Chinese, Korean, South Asian, Southeast Asian, and Pacific Island groups.

Citing race-conscious admissions programs which opened the door to higher education for AAPIs in the past, the three organizations note that many AAPIs still face significant educational barriers and benefit from race conscious affirmative action programs in higher education.

“By considering the role that these students’ racial and ethnic origin has had on their experiences and achievements, UT’s admissions process encourages racial disaggregation and individualized treatment and thwarts the harmful ‘model minority’ myth that masks tremendous diversity within the Asian American and Pacific Islander community,” according to the AALDEF-Foley Hoag brief. “Many Asian applicants in communities struggling with low educational attainment will suffer if admissions programs such as UT’s are dismantled.”

The AALDEF-Foley Hoag brief distinguishes affirmative action and negative action, noting there is no evidence in the record that proves UT’s “holistic review” process discriminates against AAPIs. The brief cites the increase in the percentage of Asian Americans in UT-Austin’s freshman class from 6% to 23% from 1986 to 2014, encompassing periods of both race-neutral and race-conscious admissions policies. Moreover, recent enrollment of Asian Americans at UT is five times larger than the percentage of Asian Americans living in Texas.

This is Fisher’s second appearance before the Supreme Court. AALDEF and Foley Hoag also submitted an amicus brief to the Supreme Court in 2012, disputing Fisher’s arguments. The Court remanded the case to the Fifth Circuit Court of Appeals after finding the Fifth Circuit had failed to apply the “strict scrutiny” standard when examining UT’s admissions procedures.

Then, as now, AALDEF and Foley Hoag argue that Fisher’s amici rely on damaging stereotypes about Asian Americans as a “model minority” and inaccurate characterizations of SAT score data in support of their argument that UT’s holistic review policy harms Asian American applicants. The AALDEF- Foley Hoag brief rebuts these claims with Census data and by highlighting where they cannot be substantiated by fact.

“Fisher’s amici are propagating stereotypes to pit American ethnic groups against each other,” said Foley Hoag partner, Hemmie Chang. “AALDEF and its amici believe the highly individualized consideration of applicants, which includes race as only one of many factors, in the University of Texas at Austin’s admissions process, can and does benefit Asian American and Pacific Islanders. We are urging the Supreme Court to recognize the tremendous diversity of the AAPI community and uphold the university’s affirmative action policy.”

The Foley Hoag legal team includes partners Dean Richlin and Hemmie Chang, and associates Catherine Deneke, Sarah Burg, Alice Yu, and Amanda Hainsworth. The broader Asian American coalition joining AADLEF in support of UT-Austin’s individualized admissions policies includes Advancing Justice, the Coalition of Bar Associations of Color (NAPABA, the Hispanic National Bar Association, the National Bar Association, and the National Native American Bar Association), and over 160 Asian American organizations, student groups, and bar associations as well as 53 higher education faculty and officials.

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